Tenon v. State

545 So. 2d 382, 14 Fla. L. Weekly 1349, 1989 Fla. App. LEXIS 3180, 1989 WL 57878
CourtDistrict Court of Appeal of Florida
DecidedJune 2, 1989
DocketNo. 88-2030
StatusPublished
Cited by3 cases

This text of 545 So. 2d 382 (Tenon v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tenon v. State, 545 So. 2d 382, 14 Fla. L. Weekly 1349, 1989 Fla. App. LEXIS 3180, 1989 WL 57878 (Fla. Ct. App. 1989).

Opinion

MINER, Judge.

Defendant, Johnny Tenon, appeals from his conviction for cocaine possession, assigning as error the trial court’s denial of his challenge for cause directed to a prospective juror during voir dire examination and the denial of his motion for mistrial based upon the prosecutor’s alleged discriminatory use of peremptory challenges. In view of our disposition of the first point raised, we do not reach the trial court’s denial of defendant’s motion for mistrial. [383]*383During the jury selection phase of defendant’s trial, the record reflects that two potential jurors expressed strong reservations about their ability to judge the case impartially because of their feelings about illicit drugs. In response to a general question directed by defense counsel to prospective jurors, venireman Baccash replied that he thought that “cocaine, crack and marijuana is wrong in our society.” Thereafter, the following colloquy occurred between Baccash and defense counsel, Mr. Rosner:

Mr. Rosner: This case involves cocaine, crack cocaine. Do you feel like you can put aside your feelings about cocaine, crack cocaine and judge this case based on the testimony and the instructions that the court will give you?
Mr. Baccash: I can’t give you an honest answer because it might slip back in. Mr. Rosner: In other words, you’re not sure if the court were to instruct you that you should put aside your feelings of bias and sympathy?
Mr. Baccash: I could say yes, and try to do it, but I couldn’t really honestly say it. Prospective juror Owings answered next: Ms. Owings: I feel the same way. I think I would be biased.
Mr. Rosner: You think you would be biased?
Ms. Owings: Yes.
Mr. Rosner: If the court were to tell you that you should put aside your feelings of bias, or prejudice, or sympathy and judge the case on the facts and the court’s instructions to you, do you think you would have some problems following the court’s instructions on that?
Ms. Owings: Yes.

Thereafter, without delving further into their feelings about drugs, the trial judge asked potential jurors Baccash and Owings if they could “follow the law” notwithstanding these feelings. Each responded in the affirmative. During a chambers conference which followed this exchange, defense counsel moved to challenge Mr. Baccash for cause based upon his initial indication of potential bias. The court denied a challenge for cause which necessitated counsel’s use of a peremptory challenge. The state then challenged Ms. Owings for cause. Before considering this challenge, the judge went back into the courtroom and again questioned Ms. Owings. She reiterated that she would “try to be” fair and impartial but .reminded the court of her previously expressed bias. Based on this response, the court granted the state’s challenge for cause.

Before the jury was selected, defense counsel requested an additional peremptory challenge, explaining that he had been required to use all his peremptory challenges, including one on Mr. Baccash. The court denied the request, a jury was selected and sworn, the defendant was convicted and this appeal ensued.

Appellant argues that the initial identical responses of potential jurors Baccash and Owings to questions seeking to reveal bias and prejudice established a reasonable doubt as to their ability to render an impartial verdict. He reasons that their earlier equivocation in responding to the questions asked was at least as credible as their later statements that they could “follow the law”. He concludes that denial of his motion to strike Mr. Baccash from the jury panel for cause was reversible error because sufficient grounds existed for such a challenge. We agree and reverse.

In Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984), the Florida Supreme Court set out the test for juror competency:

The test for determining juror competence is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.

In Hill v. State, 477 So.2d 553 (Fla.1985), the Supreme Court held that, in applying the Lusk test, trial courts must utilize the rule laid down in Singer v. State, 109 So.2d 7 (Fla.1959):

If there is a basis for any reasonable doubt as to any jurors possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial, he should be ex[384]*384cused on motion of a party, or by the court on it’s own motion.

A juror’s competency to judge fairly and impartially is a mixed question of law and fact and a ruling by the trial court on the matter should not be disturbed unless the error is manifest. Singer v. State, supra. However, manifest, reversible error occurs when the trial court fails to follow the Singer rule thereby abridging a party’s right to peremptory challenges by reducing the number of those challenges available to him. Otherwise stated, it is reversible error for a trial court to force a party to use peremptory challenges on persons who should have been excused for cause provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied. Hill v. State, supra; Leon v. State, 396 So.2d 203 (Fla. 3rd DCA 1981). However, a trial court’s refusal to excuse a prospective juror for cause, even if error, will not be reversed unless the challenging party exhausts all his peremptory challenges. Nibert v. State, 508 So.2d 1 (Fla.1987).

Even though we reverse defendant’s conviction in this case, we do not hold or mean to imply that a prospective juror who expresses initial misgivings about his ability to judge the case fairly and impartially cannot, through appropriate further inquiry, be found to be free of some disqual-ifing influence. Such inquiry should be governed by the nature of the venireman’s expressed feelings. If, for example, a prospective juror should respond to the question “Do you know of any reason why you could not sit as a fair and impartial juror in this case?” with “I know the defendant and I wouldn’t put anything past him!” it is highly likely that no amount of further inquiry will change that type of mind set. Clearly, this venireman should be excused for cause on proper motion or on the court’s own motion.

Not quite so easy of resolution is that instance where a potential juror expresses a tentative belief in the guilt or innocence of the person on trial based on extensive media coverage or “street talk”. However, a thoughtful inquiry by the court may or may not result in that juror’s meeting the impartiality test set out in Singer and reaffirmed in Hill.

Probably the prospective juror most likely to be rehabilitated by appropriate further inquiry by the court is that person who, as in this case, expresses strong feelings about the nature of the crime charged rather than the person on trial. The focus of his concern is the crime itself rather than the defendant. Any further inquiry of this venireman should seek to redirect his attention back to the “him” or “her” and away from the “it”.

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Related

Huber v. State
669 So. 2d 1079 (District Court of Appeal of Florida, 1996)
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651 So. 2d 756 (District Court of Appeal of Florida, 1995)
Noe v. State
586 So. 2d 371 (District Court of Appeal of Florida, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
545 So. 2d 382, 14 Fla. L. Weekly 1349, 1989 Fla. App. LEXIS 3180, 1989 WL 57878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tenon-v-state-fladistctapp-1989.